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HOUSE COMMITTEE ON THE DISTRICT OF COLUMBIA 

SIXTY-FIRST CONGRESS, SECOND SESSION 



F 195 
.D61 
Copy 1 



ACT OF RETROCESSION 



REPORT OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA 

TRANSMITTING DRAFT OF H. J. RES. 281, AUTHORIZING THE 

APPOINTMENT OF A COMMISSION TO CONSIDER THE 

RESTORATION TO THE DISTRICT OF COLUMBIA OF 

A PORTION OF ALEXANDRIA COUNTY, VIRGINIA 



LETTER OF MR. AMOS B. CASSELMAN 
ON THE SAME SUBJECT 



JUNE 14, 1910 



Printed for use of the Committee 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1910 






yOH 



-3 \9\° 



ACT OF RETROCESSION. 



Office Commissioners of the 

District of Columbia, 

Washington , June J 4, 1910. 
Hon. S. W. Smith, 

Chairman Committee on District of Columhia, 

House of Representatives. 

Sir: The Commissioners of" the District of Cohimbia, in accord- 
ance with your request of April 30, 19U), have tlie honor to report 
as follows upon a proposed resolution to direct the Attorney-General 
of the United States to prosecute a suit to determine the validity 
of the act of retrocession 

In considering tlds subject the commissioners have separated it 
into two parts. The first, relatino; to tlie desirability of extending 
the limits of the District of Columbia as now admitted across to 
the right bank of the Potomac River, together with the question 
as to how much and what land, if any, on tlie right bank should, 
in the public interest, be administered as a part of the District of 
Columbia, and the second, as to w^hat method should be pursued to 
acquire, for the District of Columbia, any areas that may be desired. 

With reference to the first of these two c{uestions, it is evident 
that the most extensive acquisition which could be considered at 
this time would embrace the whole of Alexandria County. The 
commissioners do not believe that it is desirable from the stand- 
point either of Virginia or of the United States that all of this terri- 
tory should revert to tlie federal district. The State of Virginia 
and its citizens would object to giving up considerable taxable 
areas over which Virginia now exercises sovereignty. The people 
living in and owning land in the area now" indisputably embraced 
within the District of Columbia would, for many years, be con- 
tributing by taxation to the development of another section, because^ 
for many years, expenditures for improvements in the added sectioa 
w^ould be disproportionately large. 

The contribution of the United States to the support of the district 
w^ould be increased out of any proportion to federal benefits secured. 

There appears to be every reason for limiting the area within the 
District of Columbia to the least amount that will enable the District 
satisfactorily to fulfill its function as the locus of the national capital. 

While it (iocs not seem desirable to acquire all of the territory which 
was retroceded, yet there remains the very important consideration 
that those parts of Alexandria County wdiich lie near to the Potomac 
and in plain sight of the capital, especially that part embracing the 
Palisades of the Potomac below Chain Bridge, might easily become an 
eyesore and mar the beauty of the city which confronts them. 
Already quarries are disfiguring the green slopes and ravines of the 
Virginia shore. 

Two im])ortant considerations which must have influenced the 
authorities in determining the original boundaries of the District of 



4 ACT OF RETROCESSION. 

Columbia were the one military and the other sesthetic. The mili- 
tary consideration has lost all practical importance. The esthetic 
consideration yearly grains in importance. The growth of a large 
city here, perhaps an unexpectedly large city, and the expenditure of 
so much money in constructing buildings, parks, and the like, of a 
monumental character, render it essential to the performance of its 
function that certain limited areas should revert to the federal district. 
What would so essentially benefit the city of Washington would 
benefit tlie portions of Virginia lying near Washington. 

Considerable portions of the land lying across the Potomac, and 
especially the palisades, would be parked. In parting with sov- 
ereignty over so small an area, the State of Virginia could at the same 
time benefit herself and benefit the nation. 

On the other hand, Virginia might be expected to contest strenu- 
ously any suit to dispossess her of the whole of Alexandria County. 
Hard feeling might be engendered. The issue of the suit would be 
long delayed and uncertain, and if the issue were favorable to the con- 
tention of the United States, more territory would pass into the Dis- 
trict of Columbia than the District really needs or could administer 
to advantage. 

The attention of the commissioners has been invited to the fact that 
under an existing Virginia law the United States might purchase land 
in Virginia for any purpose of the Government and exercise exclusive 
jurisdiction over it. It would thus be possible for the United States 
to acquire for park purposes the palisades along the right bank of the 
Potomac. It is believed, however, that Congress would be slow to 
exercise this privilege unless the jurisdiction had been previously 
extended over the immediate environs of such a park and unless the 
land, being a part of the District of Columbia, could be purchased out 
of the combined revenues of the latter. 

For the reasons given above, the commissioners recommend that 
the proposed joint resolution under consideration be not passed, but 
that in lieu thereof there be presented to Congress, with request for 
its enactment, a draft of another joint resolution similar to that in- 
closed herewith, with a view to securing the annexation to the Federal 
District of that limited portion of Alexandria County hereinabove 
described as especially needed. The joint resolution recommended 
by the commissioners for enactment is self-explanatory. 

A copy of the map referred to in the draft as on file in the office of 
the engineer commissioner is inclosed herewith.'^ Upon it is indi- 
cated the area which, in the opinion of the commissioners, should be 
added to the District of Columbia. A small contour map, published 
by the Geological Survey, is also inclosed. « 

The area of land that was retroceded to Virginia in 1846 embraced 
19,600 acres. The amount of land that the commissioners recom- 
mend be added to the District of Columbia is 7,300 acres; but over 
1,035 acres of this, embracing the Arlington reservation (including 
Fort Myer and the experimental farm of the Agricultural Depart- 
ment), the United States already exercises sovereignty. 
Respectfully, 

Board of Commissioners District of Columbia, 
By CuNO H. Rudolph, President. 

oNot printed. 



ACT OP RETROCESSION. 5 

(The following is the joint resolution recommended by the com- 
missioners :) 

JOINT RESOLUTION Authorizing the appointment of a commission to consider the rDstoration ta 
the District of Columbia of a portion of Alexandria County, Virginia. 

Resolved by the Senate and House of Represen tatives of the United States of America 
in Congress assembled, That the President of the United States be, and he is hereby, 
authorized to appoint a commission, which shall consist of six members and 
who shall serve without compensation, three of whom shall be citizens of the 
State of Virginia, and this commission shall consider and report what legislation 
is requisite on the part of the Congress of the United States and what legislation is 
requisite on the part of the legislature of the State of Virginia in order to secure the 
restoration to the District of Columbia of so much of Alexandria County, Virginia, 
as may be essential to the proper development and maintenance of the capital of the 
United States, consisting of an area of thirty square miles, more or less, bordering 
upon the Potomac River, and embracing for the most part those portions of Alexandria 
County which are nearest to and most plainly visible from points in the District 
of Columbia on the left bank of the Potomac River, all as indicated upon a map filed 
in the office of the engineer commissioner of the District of Columbia: Provided, 
That the governor of the State of Virginia, if he shall elect so to do, shall nominate for 
appointment by the President the three members of the said commission who are citi- 
zens of the State of Virginia: And provided further, That the members of the com- 
mission shall each be paid their actual expenses in going to and returning from Wash- 
ington, District of Columbia, to attend the meetings of said commission and while 
attending same. 

Sec. 2. That to meet the expenses made necessary by this joint resolution there 
is hereby appropriated the sum of one thousand dollars, one half payable out of any 
money in the Treasury not otherwise appropriated, and the other half out of the 
revenues of the District of Columbia. 



LETTER OF ME. AMOS B. CASSELMAN. 

Washington, D. C, June I4, 1910. 
Hon. Samuel W. Smith, 

ChairTTian Committee on the District of ColumMa, 

House of Representatives, Washington, D. C. 

Dear Sir: Referring to the several measures that have been pro- 
posed for the consideration of your committee, for regaining Alexan- 
dria County to the District of Columbia, two distinct methods have 
been suggested, one or the other of which in some form must be 
adopted to attain that end. One is by action at law in the Supreme 
Court to declare the act of retrocession of 1846 unconstitutional and 
set it aside. The other is by negotiation and agreement with the 
State of Virginia to obtain her consent to cede again to the United 
States a needed part of said county, not including Alexandria City, 
which by reason of its location in the extreme corner of the county can 
readily be detached and left to Virginia. 

Each of these methods has intelligent advocates. The Board of 
Trade of Washington has adopted a resolution advocating legal pro- 
ceedings to declare the act of retrocession unconstitutional. The 
chamber of commerce has adopted a resolution favoring negotiation 
with Virginia to cede back a portion of the county. The President^ 
who has repeatedly manifested his interest in the subject, has clearly 
indicated that while not committed to any particular method of 
regaining the county, he would favor either or any practicable measure 
designed to accomplish that purpose. 

My object in writing this letter is to urge upon your attention some 
of the many reasons in favor of negotiations with Virginia, in prefer- 
ence to the proposed action in the Supreme Court. Not onh^ are there 
strong reasons in favor of this more amicable method of procedure, 



6 ACT OF RETROCESSIOlSr. 

but there are equally strong objections to the other method proposed, 
and I may first point out some of these objections. 

The recent argument of Mr. Hannis Taylor, in support of his con- 
tention that the act of retrocession is unconstitutional and should be 
set aside, derives interest and importance from Mr. Taylor's reputa- 
tion as a lawyer and writer, and from the further fact that the Senate 
of the United States, in recognition of his high rank as an author, 
has caused his argument to be printed as a public document. 

Undoubtedly there are able lawyers who doubt the constitutionality 
of the act of retrocession, and who earnestly hope to see Alexandria 
County restored to the District of Columbia, who nevertheless do not 
concur in Mr. Taylor's views of the Constitution, nor in his statement 
of the material facts on which his argument is based. His statement 
of facts, which is in a large measure vital and essential to his argument, 
contains the following: 

The contemporaneous evidence puts the fact beyond all question that the final defi- 
nition of a district 10 miles square as the seat of our Federal Government was in a 
special sense the personal work of President Washington, whose task involved the 
acquisition of the title to the tract from three sources — the State of Virginia, the State 
of Maryland, and the 19 local proprietors who owned that part of the heart of the pres- 
ent city which underlies the Capitol, the White House, and the Treasury. Wash- 
ington's task was to induce the three parties who held title to cede to the Federal 
Government, without any direct pecuniary consideration, the entire area under a 
quadrilateral contract in which that Government was the grantee and beneficiary, 
and Virginia, Maryland, and the 19 local proprietors the grantors. The real con- 
sideration moving to such grantors was the incidental benefits to accrue to them from 
their joint cession, which in the language of the act of July 16, 1790, "is hereby ac- 
cepted for the permanent seat of the Government of the United States." That cove- 
nant represented the only consideration moving directly from the Federal Government, 
while the three grantors were bound to each other by the mutual considerations moving 
from the one to the other under interdependent grants. 

Obviously, unless this statement is substantially true, the argument 
based upon it must fall to the ground. Unfortunately, Mr. Taylor's 
statement is in conflict with historical fact. It is not true, for instance, 
that " W^ashington's task involved the acquisition of the title" from 
Maryland and Virginia. It was unnecessary, nor was it any part of 
this "task," to mduce those States to cede what they had already 
ceded unconditionally and in the most voluntary manner. Nor is 
there any basis of fact for the assertion that there was a "contract" 
between Maryland and Virginia, or b}^ which those States and local 
landowners were obligated to each other, or that "the three grantors 
were bound to each other by the mutual considerations moving from 
the one to the other under interdependent grants. " Those States, in 
ceding territory to the United States for the seat of government, 
acted separately and independently of each other, and witliout mutual 
understandings with local landowners. The historical facts, briefly 
stated, are as follows: 

The Constitution of the United States had provided for the "cession 
by particular States and the acceptance by Congress" of a district 
.not exceeding 10 miles square to become the seat of government. 
Pursuant to this provision of the Constitution, the State of Maryland 
by an act of its legislature approved December 23, 1788, and entitled 
"An act to cede to Congress a district 10 miles square," etc., author- 
ized its R'^pres?ntativps in Congress to — 

cede to the Congress of the United States any district in this State not exceeding 10 
miles square, which the Congress may fix upon and accept for the seat of Government 
of the United States. 



ACT OF RETROCESSION". 7 

The purpose of this act, at the time of its passage, was to secure 
the location of the capital in the State of Maryland, and preferably at 
Baltimore, which was stron?::ly uro;ed as a suitable location. 

In like manner on December 3, 1789, the legislature of Virginia 
enacted a law providing: 

That a tract of country not exceeding 10 miles square, or any lesser quantity, to be 
located within the limits of this State, and in any part thereof, as Congress may by law 
direct, shail be, and the same is, forever ceded and relinquished to the Congress and 
Government of the United States, * * * pursuant to the tenor and effect of the 
eighth section of the first article of the Constitution of the Government of the United 
States. 

Under this act tlie capital could have been located at Richmond 
or anywhere in the State of Virginia. 

Other States — Pennsylvania, New Jersey, and Delaware — made 
like offers of their territory to become the seat of government, pur- 
suant to the above provision of the Constitution and subject to its 
acceptaiice by Congress, each State seeking to secure the location of 
the capital, wholly or in part, within its own domain. On July 16, 
1790, Congress finally decid'^d in favor of a location on tlie river 
Potomac, between the mouth of the Eastern Branch and the Con- 
nococheague, which points are about 65 miles apart. Said act pro- 
vided for the appointment by the President of three commissioners, 
''who shall, under the direction of the President, survey, and by proper 
metes and bounds define and limit," the said territory. This was 
"Washington's task." He was invested with the authority to fix 
the location of the seat of government between the two points desig- 
nated on the Potomac. It was not his task to ''acquire title" or to 
"induce" the cession of territory, but only to locate and survey. the 
boundaries of the seat of government out of territory which had 
already been ceded for that purpose and accepted by Congress. 
When the two States severally ceded their territory, subject only to 
its acceptance by Congress, and to no other condition, neither they 
nor the local landowners could possibly know that the lands of such 
owners would be included within the area subsecpiently accepted. 
Maryland "ceded" her "territory" in 1788; Virginia hers in 1789. 
The' landowners "granted" their lands in 1791. The cession and 
acceptance of 10 miles square of territory to become the seat of gov- 
ernment was one transaction. The laying off of a city within that 
territory was a later and wholly different transaction. There was 
no necessary connection between the two transactions. There was 
no contract and no mutuality of agreement or of interest as between 
the State of Virginia and tlie local proprietors in Maryland whose 
lands happened to be embraced within the accepted territory. 

Wlien these facts are considered it must be seen that there is no 
foundation for the theory that there was a "quadrilateral contract," 
with mutual covenants and obligations between the State of Virginia 
and the local proprietors in Maryland, a contract the existence of 
which was never suspected prior to its supposed discovery by Mr. 
Taylor one hundred and twenty years after the events referred to. 
The historical facts stated by 'Mr. Taylor in his argument do not 
sustain his theory of a quadrilateral contract. 



8 ACT OF RETROCESSION. 

Passino; from questions of fact to questions of law, Mr. Taylor's 
views of the constitutional provision cited by him are not those com- 
monly entertained by lawyers. He says: 

'Uliat I can not understand is the fact that in any debate, however hastily conducted, 
the deeper and more obvious argument based on the contract clause of the Constitution 
(Art. I, sec. 10) should have been entirely overlooked. And yet the record shows 
that such was the fact. It never occurred to anyone in 1846, or since that time, to 
look to the sources of the title in the quadrilateral contract upon which the ownership 
of the area, 10 miles square, really depends. What is said herein as to that branch of 
the subject is my personal contribution to the controversy. 

The clause of the Constitution referred to, Article I, section 10, is 
as follows: 

No State shall pass any bill of attainder, ex post facto law, or law impairing the 
obligation of contracts. 

In its plain terms, this provision of the Constitution is a limitation 
upon the power of the several States, and not upon the powers of 
Congress. "No State" shall pass any bill of attainder. ''No State" 
shall pass an ex post facto law. "No State " shall pass a law "impair- 
ing the obligation of contracts.'' It has never heretofore been con- 
tended that this clause of the Constitution could be invoked against 
an act of Congress. It has been invoked in a multitude of cases 
against legislation by a State; never against an act of Congress. 
(Black's Constitutional Law, third edition, pp. 720-721.) This may 
in Dart ex})lain the fact which seems to have surprised Mr. Taylor, 
that the "argument based on the contract clause of the Constitution 
should have been entirely overlooked," and that "it never occurred 
to anyone in 1846, or since that time, to look to the sources of the 
title in the quadrilateral contract." The reason undoubtedly why 
Webster and Calhoun, who were in the Senate in 1846, and Senator 
Hoar and other constitutional lawyers since their day, who have con- 
sidered this subject, "overlooked" the contract clause of the Consti- 
tution and the "quadrilateral contract" is that there was no quadri- 
lateral contract, and that the constitutional })rovision cited has no 
bearing upon the case. 

Aside, therefore, from other objections to the proposed action in 
the Supreme Court, it must be deemed a very serious objection that, 
in the sixty years that have elapsed since the act of retrocession, 
no one has up to tliis time demonstrated, by any convincing argu- 
ment, wherein the Constitution is violated by said act. 

One satisfaction is gained from Mr. Taylor's paper. It makes 
plainer the inexpediency of attempting to recover Alexandria County 
by the ])roposed action in the Supreme Court, and that the better 
and wiser method is that of negotiation and agreement with the State 
of Virginia. The constitutional question can not be settled by 
dogmatic assertion; and those who believe that Congress exceeded 
its powers in the act of retrocession do not insist that the question 
must necessarily now be settled in court. 

On the contrary, there are a world of reasons for settHng it other- 
wise. Justice to Virginia demands that her consent should be sought 
before she is sued in court. The act of retrocession was not the 
act of Virginia. It was the act of the United States. It was a 
mistake. But why should Virginia be sued to correct a mistake 
made by the United States, at least until after other methods of 
remedy have been tried? No Attorney-General has ever advised 



ACT OF RETROCESSION. 9 

a suit against Virginia, or that the act of retrocession is unconsti- 
tutional. We have unofficial opinions for and against its validity. 
But it is not upon unofficial opinions that the United States is war- 
ranted in suing a State. 

The purpose of regaining Alexandria County to the District of 
Columbia is not merely to assert a legal right. It is higher and broader 
than that, else it ought not to succeed; and one of the reasons for set- 
tling the question out of court, and by agreement, is that this will 
permit the parties to determine what portion of the county, less than 
the whole, ought to be restored to the District. 

No one will seriously pretend that Alexandria city, with its 20,000 
Virginians, situated in the extreme corner of the county, 6 miles from 
Washington, is needed as an addition to the seat of government. 
Just what portion of the county, lying in near proximity to Washing- 
ton City, should be restored to the District of Columbia — just where 
the line should be drawn — is a question for negotiation. Two different 
lines have been suggested. A third line embracing a still less area of 
territory than either of these might be agreed upon. The United 
States should not desire Virginia to surrender any part of its territory 
that is not clearly needful as an addition to the present seat of gov- 
ernment. The restoration of this territory to the District of Columbia 
will be a loss to Virginia of revenue from a section that is growing in 
wealth and population with great rapidity. There is no need to dis- 
guise this fact. Yet the United States will not gain, in the matter of 
revenue, which will fall short of the expenditures necessary for public 
improvements for many years to come. It is for no selfish reasons 
that the United States should seek to regain the county. It is the 
county that will be most benefited by the change. But the United 
States, in recognition of Virginia's loss, would perhaps be willing to 
reimburse the State with no ungenerous hand. In 1846 it was justly 
urged that the county was neglected and that Alexandria failed to 
share in the benefits extended to the Maryland portion of the District 
in the matter of public buildings and other improvements. Condi- 
tions have changed now, so that the county would be benefited by 
better schools, liighways, parks, police protection, sanitary control by 
the board of health, and by liberal expenditures for all necessary 
public improvements. 

Objection has been made that the proposed effort to negotiate on 
this subject with Virginia would be hopeless. This can not be con- 
ceded, and can hardly be true. Virginia could hardly refuse to 
negotiate; and negotiation means agreement. It means that when 
commissioners representing the United States and others representing 
Virginia meet to confer on a subject of such important public interest, 
they will hardly fail to agree in determining what the public interests 
require. They will agree on some settlement of the question, on 
some line restoring some' portion of Alexandria County to the District, 
on terms tliat will be just alike to Virginia and to the larger interests 
of the United States in her capital. It is true that no one is warranted 
in saying just what the State may or may not do. But surely no one 
is warranted in assuming that the State will simply refuse to entertain 
a proposal to negotiate, or that she will not meet the United States 
half way on any reasonable and just proposition looking to the settle- 
ment of this question. 

The movement, which has recurred from time to time, to regain 
Alexandria Countv to the District of Columbia, derives whatever of 



10 ACT OF EETROCESSION. 

real force and vitality it has from the intelligent conviction, con- 
stantly growing, that the capital will shortly and imperatively require 
this addition to its territory. It is a movement conceived in no spirit 
of indifference to the interests of Virginia. It is not a lawyer's con- 
troversy over a clause of the Constitution, or over a supposed dor- 
mant legal title. Its purpose is higher and broader than that. In 
so far as it has potency and prospect of success, it springs from unselfish 
pride in the nation's capital, and from a desire to aid in making it what 
it is destined ultimately to become, the most imposing and beautiful 
capital, in the city and its environs, that the human race has seen or 
conceived. It is a movement which appeals to those who can most 
appreciate it; and it is significant of this fact that it owes its greatest 
impulse to its support and advocacy by the President of the United 
States. 

The method of negotiation with Virginia that has been proposed is 
through the appointment by the President and the governor of 
Virginia of a joint commission, similar to the action taken by the 
States of New York and New Jersey in the appointment of a joint 
commission, and the creation of the Inter-State Palisades Park, in 
those two States, opposite New York City. That enterprise could not 
have succeeded but for joint action of the two States. It was aided 
also by generous private donations from wealthy and public-spirited 
citizens of the two States — J. P. Morgan, Rockefeller, Mrs. Harriman, 
Mrs. Russell Sage, and others — in lands and money, aggregating in 
value several million dollars, and extending the park on the Hudson 
River almost half way from New York to Albany. It seems not 
unreasonable to assert that there is in this Hudson River Inter-State 
Palisades Park a lesson of encouragement to those who would extend 
the boundaries of the National Capital to include the opposite bank of 
the Potomac, with its palisades, and an area which, though small, is 
adapted to make a beautiful river-side park. 

Recurring again, finally, to the argument in favor of negotiation 
with Virginia, as the proper means of regaining Alexandria County, it 
is worth while to note that in so far as there are any official opinions 
bearing on this subject they are in support of this argument. Those 
which have a bearing on the subject, more or less direct, are: (1) The 
decision of the Supreme Court in Phillips v. Payne (92 U. S., 130); 
(2) the opinion of the Attorney-General (Harmon) in 1896, suggest- 
ing in answer to the question, " Wliat legislation is necessary " to regain 
the county, that the answer ''is indicated in the Constitution * * * 
it is the cession of the territory by the State and an acceptance thereof 
by Congress;" (3) the report of the Judiciary Committee of the 
Senate in 1902, through its able chairman, Senator Hoar: 

If it be desirable that Alexandria become a part of the District of Columbia again, 
the only way to accomplish it will be to open negotiations with Virginia and get her 
consent. 

Since writing the foregoing I have read the report, to your com- 
mittee, of the Commissioners of the District of Columbia on this 
subject, just published, which in the main accords with the views 
above expressed, and in my opinion points the way for action by 
Congress. 

With high regard, I am, very respectfully, 

Amos B. Casselman. 

o 



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IIIIHIIIIIIIIIII 



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